A phased return to work is where an employee who has absent from work due to illness, usually for some time, agrees with their employer a way to ‘stagger’ how they come back into the workplace, rather than resuming duties on a full-time basis straight away.
Such employees may have had a serious physical or mental illness, have a disability or have suffered a bereavement, and would benefit from a transitional approach to enable them to adjust to being back at work.
For employers, allowing a phased return can also bring benefits, including:
- There is a better chance of retaining a valuable employee who has been on long term sick leave if you accommodate their needs at the outset. If you do not facilitate a successful transition back to the workplace there is a greater chance that the employee will never return, or will have to be dismissed on ill-health grounds, neither of which are attractive options.
- It creates a positive supportive atmosphere in the workplace.
- There is the potential to save money on covering for the absent employee if they are back at least part of the time.
- There is the potential to save money on recruitment and training costs if the absent employee leaves.
Who can request a phased return to work?
An employee can request a phased return themselves, or as a result of a recommendation by their GP, or the employer’s occupational health practitioner.
General Practitioners can recommend a phased return to work on the ‘Fit Note’ they give to patients. The Fit Note is designed to help patients consider what they can do, rather than what they are still unable to do. This is because a return to work in some capacity can in many cases help a person’s general recovery, to help them regain a sense of purpose and financial stability.
An employer who is concerned about the fitness of an employee who is returning to work after a long period of absence may make a referral to an occupational health practitioner. The OHP will talk to the employee and make an assessment of whether the employee is ready to return to work, and if so the correct type of phased return for them. A copy of the OHP’s report must be sent to the employee.
It is best practice for organisations to set out their return to work procedure as part of their sickness absence policy or employee handbook. This will provide clarity to both the employer and employee, and help ensure consistency across the organisation when implementing the policy.
The document should explain the process an employee needs to follow to request a phased return to work, and outline what the employee can expect from the employer. Ordinarily, this would involve the employee making a formal written request and then attending a meeting with their line manager and HR to discuss the proposal and agree the terms of the return to work, with the outcome confirmed in writing to the employee.
Examples of phased return to work
There is no set timeframe for a phased return, although they can usually last between 4 – 6 weeks. It is for the employer and employee to agree to the timescale when discussing the arrangement.
The nature of the ‘phasing’ will depend on the employee’s circumstances and the nature of the employee’s role. For example, some employees may simply need to start later and finish earlier to avoid the busy rush hour. Others may need to work mornings only as they are still suffering from fatigue.
For other employees, it may work better to attend for full days, but only two or three per week.
Phased returns can also relate to duties. For example, there may be some employees whose medication means that they must undertake lighter physical duties for a period of time.
Tiredness or stress may also impact on an employee’s ability to undertake a high-pressure customer-facing role, so they could work in a quieter, back-office role while they become re-accustomed to the working environment.
You will need to listen to your employee and their suggestions, and see what can be best incorporated into their work schedule and the needs of your organisation.
Does the employer have to agree to a phased return to work?
The answer to this depends on the reason the employee is making the request. If an employee has a disability, then employers must make reasonable adjustments to help the employee return to work and to help them to do their job. Examples of such adjustments are providing special equipment or facilities; adjusting their working hours; and/or amending their duties.
If a disabled employee made a request for a phased return and this was refused, you would likely be in breach of the Equality Act 2010.
In other cases, the employer does not have to agree. However, if you later dismiss the employee on capability or ill-health grounds, and the employee makes a claim of unfair dismissal, your failure to agree to a phased return, i.e. to give the employee a chance, may be taken into account.
Phased return to work after absence due to stress
Employees returning to work after a period of stress-related absence may be considered to have a disability under the Equality Act 2010.
A disability is defined as a physical or a mental condition which has a substantial and long-term impact on your ability to carry out normal day to day activities. Therefore, you may need to make reasonable adjustments for an employee who has been off with stress.
When dealing with an employee who has been off with stress, you should remember that the procedure for dealing with a phased return to work can be an administrative burden for both the employee and the employer and therefore a cause of stress in itself.
Contact with the employee while they are off should be handled as sensitively as possible, or not at all, depending on the employee.
In arranging the meeting to discuss the employee’s return to work, you should be as flexible as possible about the timing, and even the location, as a neutral venue can sometimes be less intimidating for an employee who has been off work for a long time.
The employee should also be invited to be accompanied to the meeting by a colleague or trade union official.
Phased return to work after long-term sickness absence
An employee who returns to work after long-term sickness absence may also qualify as having a disability for the purposes of the Equality Act 2010.
Employees with certain conditions will automatically be protected against discrimination under the Equality Act 2010 from the day they are diagnosed. These conditions are cancer, a visual impairment, multiple sclerosis, an HIV infection and a severe, long-term facial disfigurement. The more serious the condition the more likely it may be that a suggested adjustment would be seen as reasonable by an employment tribunal, provided the adjustment is reasonable in the circumstances.
If an employee has been off work for a long time you should be aware that it may take them longer to re-adjust to the workplace.
You should revisit the phased return mid-way through to check with the employee if it is suitable for them. Depending on the employee’s feedback, you can offer to make amendments, and if their recovery seems to be slower than expected you can offer to extend the phased return period.
Phased return to work after maternity leave
A phased return to work after maternity leave can help employees, some of whom may have been off work for over a year, to readjust to working life. It can also help with the practicalities of settling a baby into a new childcare routine, and both mother and baby in adjusting to new patterns of breast-feeding.
Care should be taken over the pay aspect of this arrangement, as the employee will not have been on sick leave, but maternity leave. Therefore, you and the employee will have to agree whether or not they will be paid for the time they are not at work. This should be stated in the Employee Handbook to ensure fair treatment of all staff in this situation.
Remember also that mothers can make use of Keep In Touch days to ease the transition back into the workplace.
Is a risk assessment needed?
By law, an employer has a duty to assess the risks to the health and safety of their employees, a ‘risk assessment’. This should be written down and reviewed and updated periodically to take account of any change in working practices within the organisation. It is highly likely that there will be different risk assessments for different categories of employees.
If an employee returns to work with a physical or mental disability you should speak to them to help understand the risks posed to them in the workplace, and make an informed decision whether to carry out a risk assessment.
However, if an employee has completely recovered and simply needs assistance in managing the transition back to full-time work then a risk assessment is less likely to be necessary.
Does a phased return to work affect pay?
The following options may be considered, depending on the circumstances:
- Return the employee to full pay once they commence their phased return;
- Pay the employee for the hours they work, and ‘top-up’ the rest of the time with Statutory Sick Pay (SSP);
- Pay the employee for the hours they work and ‘top-up’ the rest of the time with Occupational Sick Pay (OSP); and
- Agree with the employee that they may use accrued holiday to top up their pay when they are not working.
Whatever is agreed between the employer and the employee, the employer must confirm the arrangement in writing to the employee.
The first option above is obviously the most generous, but not all employers will be able to afford this. If you can, however, then it is obviously a good incentive to encourage the employee back to work.
Assuming that the employee qualifies for SSP, you and the employee will have to structure the phased return carefully in order that the employee is actually entitled to be paid SSP. The reason for this is that SPP is only paid after an employee has been absent for four consecutive days (including weekends and bank holidays).
Therefore, if an employee returns to work on a two-day phased return on a Monday and Thursday, they would not be entitled to SSP. However, if they returned on a Monday and Tuesday the employee would receive their SSP entitlement for the rest of the week. If an employee returns to work for three days then these must be consecutive in order for the employee to receive SSP, and if the employee returns for four days then they will not receive SSP at all.
If your organisation has an OSP scheme and the employee has qualified to receive it, you could continue to pay OSP to the employee for the hours or days they are absent for work during their phased return.
If the employee is gradually going to build up their hours over the course of the phased return then you should set out in writing what they will be paid and when. This is particularly important if the OSP rates start to reduce after the employee has been off work for a certain period of time. For example, under the OSP scheme, some employees may have the right to receive full pay for three months then half pay for three months. The change from full pay to half pay and how this interacts with pay for the phased return must be clearly explained.
Employees who have been on sick leave nevertheless continue to accrue their statutory holiday entitlement of four weeks while on sick leave. Therefore, they may request to use some of their annual leave to cover their pay for the hours or days that they are not in during their phased return to work.
DavidsonMorris’ employment lawyers can help with all aspects of workforce management, including advice and support on return to work arrangements for employees. Working closely with our HR specialists, we offer a holistic advisory and support service for employers encompassing both the legal and people management elements of supporting employees with their return to work. For advice on a specific issue, speak to our experts today
Phased return to work FAQs
What is a phased return to work?
A phased return to work is where an employee who has been off work, usually for a long period of time, gradually returns to work over a number of weeks. Alternatively, the employee may be phased back into their duties, only undertaking a customer facing role, for example, once they have been back in the office for a couple of weeks.
How does phased return to work affect pay?
It depends on the employee's sick pay entitlement. If the employee has been paid SSP, then their pay should go up when they begin their phased return to work and earn their normal wage. If the employee has an entitlement to full pay under an occupational sick pay scheme, then their pay should stay the same as they will receive full pay for the time they are back at work and full sick pay for the rest.
When should you have a phased return to work?
You should have a phased return to work when you feel that the prospect of returning to work after an absence on a full time basis, resuming your full duties, is too intimidating. A phased return to work aims to make the return less daunting and more manageable, with the goal that after 4-6 weeks you will be back to normal.
Do you get full pay on phased return to work?
You do not necessarily get full pay on a phased return to work. It depends on the policy of your employer. However, it may be possible to 'top-up' your pay with either Statutory Sick Pay, Occupational Sick Pay or even from annual leave.
Last updated: 17 April 2020